The trust transfer must be within 90 of the formation argument

26 Feb
REBUTTAL ARGUMENT OF DANNY A. BARAK ON BEHALF OF THE PETITIONER
MR. BARAK: Your Honors, appellants recognized it’s a herculean task trying to reverse court — this Court from its original position that it held in Mendoza which the Court has — is not published currently, especially when one is not Hercules.
There are lot of courts that have just said we don’t like Glaski but their reasoning is unsound specifically because they don’t take into account what the — what the laws that they were basing their opinions on actually said.
Specifically, those three Glaski cases of Jenkins and Gomes that’s stated that you can state specific factual basis, Glaski provides one with that specific factual basis.
This idea that there’s no prejudice only matters when you’re talking about a technical glitch in the foreclosure process, that’s what Fontenot said. The idea that Kan doesn’t matter because it probably would have, you know, not like Glaski — is not supported by the case law.
Kan specifically cites to what is now not citable either to Keshtgar. Where the Keshtgar case distinguished Glaski, noting that it was a preforeclosure — postforeclosure action for damages not an action to prevent foreclosure.
All of the cases, whether they be unpublished federal district court opinions or the small handful of actually published California cases, have based their opinions on Jenkins and Gomes and Fontenot, cases that have nothing to do with the facts that were presented in Glaski.
There is not a single shred of evidence in any of those three cases that those plaintiffs — those appellants specifically stated that the law under 12 USC 860(g) of the federal code applies and that the 90-day rule is — doesn’t matter.
And that essentially what Glaski was looking at, that if the trust is threatened by a [inaudible] transfer to it, for any other reason, then that trust, under New York law, cannot accept that transfer. That would — that would completely obliterate the viability of the trust itself. That’s essentially what Glaski is talking about, that actually matters.
I’m not familiar with any appellate court — New York Appellate Court decisions that have overturned Erobobo. There were decisions that talked about nonstatutory trusts like the REMIC statute that — that talked about actual — just regular old trust that people set up in their [inaudible] that state that it can be voidable.
But as federal law specifically states that it is not a qualifying mortgage. If it happens after 90 days, after the trust closes, then that loan cannot exist in the trust. The assignment of deed of trust has legal effect, it hereby assigned the beneficial right of the loan as well as the note to Bank of America.
That has to matter, that created confusion and that is the basis of appellants’ appeal.
And with that we submit, your Honors. Thank you very much.
JUSTICE: Thank you very — thank you very much.
This matter is submitted.
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